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Thursday, June 07, 2018

SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop

I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:

  1. The proper places for respectful consideration of religious scruples. There is no doubt that the recurrent fact pattern at the heart of the case involves a conflict of constitutional values and that our constitutional culture cannot resolve these disputes without weighing the cost to religious conscience of denying religious exemptions to civil rights laws (and other laws of general applicability) against the constitutional obligations to pursue civic equality and govern even-handedly. What strikes me as strange is the opinion’s assumption that such weighing should take place in individual civil rights enforcement actions.  Maybe the Court’s opinion is, at Howard suggests, simply a “happy talk” requirement, but to the extent that it requires something more substantive, I think it is making a category mistake. Our existing jurisprudence envisions two places where that kind of weighing should take place. The first, as Howard points out, is at the level of constitutional doctrine. In cases both specific to civil rights (for example, the famed Piggie Park litigation) and more general (notably Employment Division v. Smith), the courts have already undertaken that balancing and determined that the Constitution does not require states provide such exemptions. However, nothing prevents states from according them either, which brings us to the second place in which respectful consideration of religious scruples ought to take place, the legislative chamber.  The federal government and many states have disagreed with Justice Scalia’s balancing in Smith and provided statutory rights to religious exemptions that go beyond what the Constitution requires. While many on both sides object to the scope of particular state laws, few would argue that there has not been true democratic engagement on these questions.  In the context of that debate and the institutional design decision made in Smith, Colorado’s decision to broadly protect civic equality without according an individualized assessment of the baker’s religious scruples should have resolved the case. To allow state regulators to deny an exemption but only if they provide a sympathetic hearing and words of apology is not only a silly rule but also one that misunderstands what respectful consideration of religious scruples would actually look like.
  2. The content of the Commissioners’ comments. On a related point, I think that the emergent consensus that the Commissioners’ comments about religion were, at a minimum, intemperate and disrespectful is a bit too convenient and fails to acknowledge the serious substantive point they were (inartfully) attempting to articulate.  When participants in the debate about religious exemptions reference religious support for slavery or the Holocaust, they are not making ad hominem attacks on religious belief but are instead pointing out the historical and anthropological truth that religious belief is a species of culture that often adapts to, borrows from, and incorporates other prevailing social attitudes. Not all religions or religious believers supported those outrages, but some did, and those that did often incorporated their support into their theological world view.  The likelihood that some religious groups will endorse any sufficiently popular set of cultural arrangements or social attitudes is one of the most potent arguments against allowing religious exemptions for all laws of general applicability, as legislators must remain free at minimum to identify certain nominally religious practices as sufficiently violative of human dignity to be outside the bounds of acceptable conduct. It is because outrages are sometimes perpetrated in the name of religion that we don’t let a sincere claim of religious conviction be a trump card but instead engage in complicated line-drawing to determine whether particular legal obligations ought be imposed even on those with religious objections. Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion.
  3. Justice Breyer’s legacy. Masterpiece Cakeshop now joins Bush v. Gore and the Affordable Care Act cases as the third major culture war case in which Justice Breyer voted with (and likely facilitated) a seven-Justice consensus reaching a politically conservative result on a hotly contested issue for which his prior record suggested little sympathy. Perhaps these are votes of true conviction, but in my heart of hearts I remain skeptical that he would have provided a fifth vote to find an equal protection violation in Bush v. Gore, a Spending Clause violation in the ACA cases, or a Free Exercise violation in this case.  If my speculation is correct, I find it absolutely fascinating that Justice Breyer has willingly made these votes such a central part of his legacy. (And, let's be clear, we are talking about first paragraph of the obituary stuff here.)  A lot of the commentary speculates about the strategic aspect of his (and Justice Kagan’s) decision to join the opinion and that is likely an aspect of his decision making.  To that, I would add that Justice Breyer has always articulated a longterm perspective on the institutional authority of the courts and the need to maintain public trust in the process that pushes him to look for middle ground and to avoid creating the appearance of political schisms, particularly in hot button or high profile cases.  Whether the reasons for his votes in these cases are strategic or institutional, and whether his reasoning is intentional or inchoate, his behavior in these cases raises fascinating questions about the role of the appellate judge and proper decision making procedures on a multi-member court that have now become a central part of his legacy. 

Posted by Andrew Siegel on June 7, 2018 at 01:01 PM in 2018 End of Term, Article Spotlight, Constitutional thoughts | Permalink


Let's say the commissioner didn't break Godwin's Law, and all he said was:
"an atheist can refuse to bake an anti-gay-wedding cake, but a Christian can't refuse to bake a gay wedding cake BECAUSE freedom of religion protects secular-conscientious-objectors but it doesn't protect religious-conscientious-objectors."

Would that make any sense at all? Would it show less hostility to religious people if he hadn't disparaged religious people, but had merely been straight-forward and said that only secular-objectors are protected, and not religious-objectors?

Or is the hostility the fact that he assumed that religious-objectors are insincere and merely masking hatred, whereas secular-objectors are sincere and principled?

Posted by: Party Host Hostile | Jun 10, 2018 8:34:44 PM

"Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion."

The bible doesn't say to holocaust the Jews, the bible does say that homosexuality is a sin.

Leviticus 20:13: “If a man practices homosexuality, having sex with another man as with a woman, both men have committed a detestable act. They must both be put to death, for they are guilty of a capital offense."

If most religious people agreed with the holocaust (and for religious reasons), why was Germany the only country to do it? Whereas most countries outlawed gay-marriage (and homosexuality) for hundreds of years.

Posted by: When did the Pope support the holocaust for religious reasons? | Jun 9, 2018 11:50:57 AM

Let's say you're a black photographer. You do a job at a black-power rally. A day later someone hires you to do a job at a white-power rally.
You tell them that you can't for conscientious reasons. They claim it must be racism, because you did the black-power rally (you served black customers), but you won't do their rally (you won't serve white customers).
You tell them it has nothing to do with racism. You serve white customers every day, you just don't want to be part of a white-power rally.

Now let's say Mr. Philips serves gay customers every day (as he claims), but doesn't want to be part of a gay wedding.
Should we assume he hates gays, or should we give him the benefit of the doubt that he has genuine religious-conscientious-objections to gay weddings. That is, he doesn't oppose gay people, he opposes gay weddings.

If a black photographer that won't photograph at a white-power rally doesn't hate whites, then we must assume that a Christian baker doesn't hate gays.

If Christians hated gays, we could call it gay-hate, rather than homophobia (fear of gays).

Posted by: Malcolm Z Fighters | Jun 9, 2018 10:35:40 AM

The equal protection clause states that the law--and exceptions to the law--must apply to atheists and religious alike.

So if you can drink wine or smoke pot for religious reasons, you have to be able to for non-religious/secular reasons as well. Otherwise religious people can do things that non-religious people can't do--which is a caste system where religious people are on top.

Or, if you don't have to serve a customer for non-religious conscientious reasons, you also don't have to serve a customer for religious conscientious reasons.
So if you don't have to bake a cake or be a photographer for a KKK rally because you secularly-conscientiously-object to those events, you also don't have to bake a cake or be a photographer at a gay wedding because you religiously-conscientiously-object to those events.

Otherwise, secular-conscientious-objectors would be allowed to opt-out of more things than religious-conscientious-objectors--which would create a caste-system where religious people are on the bottom.

For instance, if you could religiously-conscientiously-object to the draft, but couldn't secularly-conscientiously-object to the draft, that would allow religious people to opt-out of things secular people could not--which would be a caste-system where the religious are on top.

Posted by: Draft Dodger | Jun 9, 2018 10:17:13 AM

Everyone agrees that you cannot be forced to make a cake, with a message on the cake, that you conscientiously disagree with--like "marriage is between one man and one woman".

Everyone agrees that you cannot be forced to bake a cake for an occasion that you conscientiously object to--like a KKK rally or a same-sex wedding.

Everyone agrees that you cannot be required to be a photographer at an event that you conscientiously disagree with--like a KKK rally or same-sex wedding.

Correct? So where is all the disagreement coming from?

Posted by: Adam and Steve | Jun 9, 2018 9:46:41 AM

I don't think there is a categorical issue.

A neutral law of general applicability might be enforced so as to discriminate against religious observers. In Masterpiece the Court left open whether that was the case and the concurrences offered differing answers. It would be remarkable to say that there would be no valid religious objection in execution of the law simply because the law is facially valid.

Also, the fact that states need not provide an exemption doesn't mean their laws might not be applied/construed that way. That there doesn't need to be an exemption, doesn't mean there mustn't be.

It appears there is still room for religious objections, as Yoder is still good law. (See also In re Grand Jury Proceedings (Greenberg), 11 Fed. R. Evid. Serv. (Callaghan) 579 (D.Conn.1982). In that case, the district court held that a parent's religious objection to testifying against her adult daughter was protected by the Free Exercise Clause.)

Posted by: CrispyBacon | Jun 8, 2018 3:46:27 PM

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